Wednesday, October 26, 2011

Immunity And Impunity In The Legal System

As intense protests spawned by Occupy Wall Street
continue to grow, it is worth asking: Why now? The answer is not
obvious. After all, severe income and wealth inequality have long
plagued the United States. In fact, it could reasonably be claimed that
this form of inequality is part of the design of the American founding
-- indeed, an integral part of it.

Income inequality has worsened over the past several years and is at
its highest level since the Great Depression. This is not, however, a
new trend. Income inequality has been growing at rapid rates for three
decades. As journalist Tim Noah describedthe process:

“During the late
1980s and the late 1990s, the United States experienced two
unprecedentedly long periods of sustained economic growth -- the ‘seven
fat years’ and the ‘long boom.’ Yet from 1980 to 2005, more than 80%of
total increase in Americans' income went to the top 1%. Economic
growth was more sluggish in the aughts, but the decade saw productivity
increase by about 20%. Yet virtually none of the increase translated
into wage growth at middle and lower incomes, an outcome that left many
economists scratching their heads.”

The 2008 financial crisis exacerbated the trend, but not radically: the top 1% of earners in America have been feeding ever more greedily at the trough for decades.

In addition, substantial wealth inequality is so embedded in American
political culture that, standing alone, it would not be sufficient to
trigger citizen rage of the type we are finally witnessing. The American
Founders were clear that they viewed inequality in wealth, power, and
prestige as not merely inevitable, but desirable and, for some, even
divinely ordained. Jefferson praised “the natural aristocracy” as “the
most precious gift of nature” for the “government of society.” John
Adams concurred: “It already appears, that there must be in every
society of men superiors and inferiors, because God has laid in the…
course of nature the foundation of the distinction.”

Not only have the overwhelming majority of Americans long acquiesced
to vast income and wealth disparities, but some of those most oppressed
by these outcomes have cheered it loudly. Americans have been inculcated
not only to accept, but to revere those who are the greatest
beneficiaries of this inequality.

In the 1980s, this paradox -- whereby even those most trampled upon
come to cheer those responsible for their state -- became more firmly
entrenched. That’s because it found a folksy, friendly face, Ronald
Reagan, adept at feeding the populace a slew of Orwellian clichés that
induced them to defend the interests of the wealthiest. “A rising tide,”
as President Reagan put it, “lifts all boats.” The sum of his wisdom
being: it is in your interest when the rich get richer.

Implicit in this framework was the claim that inequality was
justified and legitimate. The core propagandistic premise was that the
rich were rich because they deserved to be. They innovated in industry,
invented technologies, discovered cures, created jobs, took risks, and
boldly found ways to improve our lives. In other words, they deserved to
be enriched. Indeed, it was in our common interest to allow them to fly
as high as possible because that would increase their motivation to
produce more, bestowing on us ever greater life-improving gifts.

We should not, so the thinking went, begrudge the multimillionaire
living behind his 15-foot walls for his success; we should admire him.
Corporate bosses deserved not our resentment but our gratitude. It was
in our own interest not to demand more in taxes from the wealthiest but
less, as their enhanced wealth -- their pocket change -- would trickle
down in various ways to all of us.

This is the mentality that enabled massive growth in income and
wealth inequality over the past several decades without much at all in
the way of citizen protest. And yet something has indeed changed. It’s
not that Americans suddenly woke up one day and decided that substantial
income and wealth inequality are themselves unfair or intolerable. What
changed was the perception of how that wealth was gotten and so of the
ensuing inequality as legitimate.

Many Americans who once accepted or even cheered such inequality now
see the gains of the richest as ill-gotten, as undeserved, as cheating.
Most of all, the legal system that once served as the legitimizing
anchor for outcome inequality, the rule of law -- that most basic of
American ideals, that a common set of rules are equally applied to all
-- has now become irrevocably corrupted and is seen as such.

While the Founders accepted outcome inequality, they emphasized --
over and over -- that its legitimacy hinged on subjecting everyone to
the law’s mandates on an equal basis. Jefferson wrote that the essence
of America would be that “the poorest laborer stood on equal ground with
the wealthiest millionaire, and generally on a more favored one
whenever their rights seem to jar.” Benjamin Franklin warned that
creating a privileged legal class would produce “total separation of
affections, interests, political obligations, and all manner of
connections” between rulers and those they ruled. Tom Paine repeatedly
railed against “counterfeit nobles,” those whose superior status was
grounded not in merit but in unearned legal privilege.

After all, one of their principal grievances against the British King
was his power to exempt his cronies from legal obligations. Almost
every Founder repeatedly warned that a failure to apply the law equally
to the politically powerful and the rich would ensure a warped and
unjust society. In many ways, that was their definition of tyranny.

Americans understand this implicitly. If you watch a competition
among sprinters, you can accept that whoever crosses the finish line
first is the superior runner. But only if all the competitors are bound
by the same rules: everyone begins at the same starting line, is
penalized for invading the lane of another runner, is barred from making
physical contact or using performance-enhancing substances, and so on.

If some of the runners start ahead of others and have relationships
with the judges that enable them to receive dispensation for violating
the rules as they wish, then viewers understand that the outcome can no
longer be considered legitimate. Once the process is seen as not only
unfair but utterly corrupted, once it’s obvious that a common set of
rules no longer binds all the competitors, the winner will be resented,
not heralded.

That catches the mood of America in 2011. It may not explain the
Occupy Wall Street movement, but it helps explain why it has spread like
wildfire and why so many Americans
seem instantly to accept and support it. As was not true in recent
decades, the American relationship with wealth inequality is in a state
of rapid transformation.

It is now clearly understood that, rather than apply the law equally
to all, Wall Street tycoons have engaged in egregious criminality --
acts which destroyed the economic security of millions of people around
the world -- without experiencing the slightest legal repercussions.
Giant financial institutions were caught red-handedengaging
in massive, systematic fraud to foreclose on people’s homes and the
reaction of the political class, led by the Obama administration, was to
shield them
from meaningful consequences. Rather than submit on an equal basis to
the rules, through an oligarchical, democracy-subverting control of the
political process, they now control the process of writing those rules
and how they are applied.

Today, it is glaringly obvious to a wide range of Americans that the
wealth of the top 1% is the byproduct not of risk-taking
entrepreneurship, but of corrupted control of our legal and political
systems. Thanks to this control, they can write laws that have no
purpose than to abolish the few limits that still constrain them, as happened
during the Wall Street deregulation orgy of the 1990s. They can
retroactively immunize themselves for crimes they deliberately committed
for profit, as happened
when the 2008 Congress shielded the nation’s telecom giants for their
role in Bush’s domestic warrantless eavesdropping program.

It is equally obvious that they are using that power not to lift the
boats of ordinary Americans but to sink them. In short, Americans are
now well aware of what the second-highest-ranking Democrat in the
Senate, Illinois’s Dick Durbin, blurted out in 2009 about the body in which he serves: the banks “frankly own the place.”

If you were to assess the state of the union in 2011, you might sum
it up this way: rather than being subjected to the rule of law, the
nation’s most powerful oligarchs control the law and are so exempt from
it; and increasing numbers of Americans understand that and are
outraged. At exactly the same time that the nation’s elites enjoy legal
immunity even for egregious crimes, ordinary Americans are being
subjected to the world's largest and one of its harshest penal states,
under which they are unable to secure competent legal counsel and are
harshly punished with lengthy prison terms for even trivial
infractions.

In lieu of the rule of law -- the equal application of rules to
everyone -- what we have now is a two-tiered justice system in which the
powerful are immunized while the powerless are punished with increasing
mercilessness. As a guarantor of outcomes, the law has, by now, been so
completely perverted that it is an incomparably potent weapon for
entrenching inequality further, controlling the powerless, and ensuring
corrupted outcomes.

The tide that was supposed to lift all ships has, in fact, left
startling numbers of Americans underwater. In the process, we lost any
sense that a common set of rules applies to everyone, and so there is no
longer a legitimizing anchor for the vast income and wealth
inequalities that plague the nation.

That is what has changed, and a growing recognition of what it means
is fueling rising citizen anger and protest. The inequality under which
so many suffer is not only vast, but illegitimate, rooted as it is in
lawlessness and corruption. Obscuring that fact has long been the
linchpin for inducing Americans to accept vast and growing
inequalities. That fact is now too glaring to obscure any longer.